Women Workers and 'Benign' Bias

ByMSMarch 25, 1991

WOMEN'S rights in the workplace were secured another notch by the Supreme Court's decision last week striking down so-called fetal-protection plans. The court's ruling, which will protect the job rights of as many as 20 million female workers, was a merited rebuke of sweeping gender discrimination. Johnson Controls, a Milwaukee manufacturer of batteries, was understandably concerned about the effects of lead exposure on the potential fetuses of its female workers - and also about the company's potential liability for lead-related birth defects. In 1982 the company banned all women of childbearing age from manufacturing jobs without proof of sterility. The plaintiffs in the suit against the company included a woman who was sterilized to keep her job and another who was transferred from a line job t o a lesser-paying clerical slot.

However benign the company's intentions, the Supreme Court rightly ruled that Johnson Controls' policy constituted unjustifiable sex discrimination, as infertility is not a "bona fide occupational qualification" for making batteries. The court decreed that all fetal-protection plans are unlawful. In the majority opinion, Justice Blackmun wrote, "Women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job."

As applied to the Johnson Controls plan, the court was surely correct. The plan was far too comprehensive, and it required too little showing by the company of the risks to women workers and their fetuses, the absence of risk to men workers' reproductive systems, and the unavailability of adequate protective measures. The plan massively disqualified women from the best-paying jobs.

Nevertheless, the court itself may have taken too broad a swipe at the complex issues involved. For one thing, it appeared to dismiss too readily companies' legitimate concern about legal liability for birth defects - especially in an era of rapidly rising jury awards for corporate conduct not always clearly negligent. Compliance with civil rights laws shouldn't expose a company to potentially large legal payouts. If such a conflict materializes, legislative protection for companies may be warranted.